Four Tips for Handling the Evasive Witness
For a lawyer conducting cross-examination, an evasive witness can be exasperating. But handled well, the evasive witness can be a gift from heaven– the very fact of persistent dodginess can help establish your narrative to the judge or the jury, and admissions won from an evader have a special value. Even the silences can ring loudly.
You don’t have to be a courtroom lawyer to encounter the evasive witness– they come in all shapes and forms, and often show up precisely when you have an important project to complete and no time to waste. These people bob and weave, they dodge, they refuse, they “explain away”, they qualify, they craftily give the right answer to the wrong question…. They can drive you crazy— which leads us to our first point.
When faced with an evasive or uncooperative witness, here’s the absolutely essential key rule to remember: Don’t let your crocodile brain take over!
If you’ve been following the Friday Briefing and/or attending any of my talks, you’ve heard about the crocodile brain (https://www.linkedin.com/pulse/crocodile-within-norman-bowley/) , that primitive but powerful tiny piece of tissue that asserts control when you are threatened. It pumps adrenaline into your system, raises your heart rate, oxygenates your blood, and makes you want to rip the bad guy’s head off. It makes you do stupid things before your intellect kicks in. This is why you need to control it– if you get angry or flustered, the game’s over.
The second thing to keep in mind is that the witness, or answerer, possesses a body of knowledge which needs to come from his mouth for your professional purposes. This means that you need to know exactly, or almost exactly, what he knows, and it’s up to you to structure your questions so as to draw these answers from his lips. This is not trickery– when the witness understands that you’re not going to go away until he tells you what you know he knows, you will almost always succeed. Thorough preparation is a vital key to breaking down evaders.
Third, you can never relinquish control. You need to be courteous, firm, clear, concise, and patient– but always persistent. And you need to be clear about your “big stick”, and use it if needed.
Fourth, establish a record. Whether having a note-taker, a simple recording, or an official stenographer, generating an accurate record of the interview not only creates your basis for seeking sanction if need be, but just by its very existence tends to encourage truthfulness and cooperation.
Handling witnesses can be the subject matter of an entire law course, and is far beyond the scope of these few lines, but these four tips can help you maximize your results with an uncooperative witness or examinee.